dispute resolution and disciplinary procedures

Dispute Resolution and Disciplinary Processes

Carol Couse and Stuart Baird

Brabners LLP

Introduction • “The right to regulate and to determine its own affairs is considered essential for an

association and is at the heart of the principle of autonomy…However, this autonomy is not absolute.” (CAS 2011/0/2422)

• Dispute resolution mechanisms should reflect the autonomy of sport but also recognise the role that the courts can / will play in the process

• Different types of disputes require different types of dispute resolution solutions

• Dispute resolution processes fall into two categories:

– Adjudicative (e.g. litigation or arbitration), i.e. a third party determines the outcome.

– Consensual (e.g. negotiation or mediation), i.e. the parties themselves seek to resolve the dispute and reach a settlement.

Ways to resolve disputes• Litigation

• Alternative Dispute Resolution (‘ADR’)

- Negotiation

- Internal dispute resolution

- Expert determination

- Mediation

- Arbitration

Mediation • Settling disputes with the assistance of a neutral third party

• Key characteristics:

- Consensual

- Party autonomy / control

- Time and cost effective

- Flexible

- Confidential

- Mediator independence and expertise

- Mediator has no adjudicative powers

Mediation – case study • Facts:

- Player loaned between two Championship clubs. It was agreed that Player would sign on a permanent basis on the expiry of the loan.

- Player did not settle and maintained that Loanee Club said he could return to his Parent Club at the end of the loan period, which he subsequently did.

- Loanee Club disagreed such representations had been made and brought a claim against Player and Parent Club for anticipatory breach of contract.

• Parties agreed to mediate and specialist sports lawyer appointed as mediator

• Parties signed a mediation agreement

• Preparation for mediation

• Mediation session – opening statements / exploration / negotiation

• Settlement offers made but no settlement reached

Arbitration • “The settlement of a question at issue, by one to whom the conflicting parties

agree to refer their claims in order to obtain an equitable decision” (The Oxford English Dictionary)

• Key characteristics:

- Agreement to arbitrate

- Party autonomy / control

- Panel independence and expertise

- Formal procedure

- Confidential

- Finality

Arbitration – case study • Facts:

- FA Rule K Tribunal held that Sheffield United was entitled to recover damages from West Ham for breaching Premier League Rules in respect of the registration of Carlos Tevez.

- Fulham commenced arbitration under Premier League Rules against West Ham claiming for loss of ‘merit’ payment in respect of its final league position and sought to rely on the findings in the Sheffield United arbitration.

• Fulham submitted a request for arbitration. The parties then nominated arbitrators. The parties’ nominated arbitrators appointed the chairman.

• The parties served their statements of claim. West Ham then requested a preliminary hearing to determine the admissibility of the Award in the Sheffield United arbitration.

• The Panel held the Award was inadmissible and relied on Court of Appeal authority. The Panel also confirmed arbitrations are confidential proceedings.

Issues – General • In respect of dispute resolution provisions in rules:

- Who and what is covered by?

- Ouster of the jurisdiction of the courts

“No athlete may take part in an International Competition unless…he agrees to submit all disputes he may have with the IAAF or a Member to arbitration only in accordance with these Rules, accepting not to refer any such disputes to any Court or authority which is not provided for in these Rules” (Rule 4, IAAF Competition Rules)


- Ensure fast and effective processes

- Hierarchical structure of sport – consistency vis-à-vis rules / procedures of other bodies

- Amateur sport

- Procedural fairness


- Bias – separation of regulatory and representative functions to neutrality / independence of decision-makers

“…justice must not only be done but must also be seen to be done. In maintaining the confidence of the parties and the public in the integrity of the judicial process it is necessary that judicial tribunals should be independent and impartial and also that they should appear to be so.” (Lord Bingham of Cornhill, Davidson v. Scottish Ministers)

- Appeals

Issues – General • In respect of dispute resolution clauses on contracts:

– Which dispute resolution mechanism best suits the subject matter of the contract

– Agree a procedure at the outset

– Forum

Issues – Arbitration • What constitutes arbitration?

- England & Wales Cricket Board Ltd v Kaneria

- Requirements for arbitration

“To my mind the hallmark of the arbitration process is that it is a procedure to determine the legal rights and obligations of the parties judicially with binding effect which is enforceable in law, thus reflecting in private proceedings the role of a civil court of law” (Hirst LJ, O’Callaghan v Coral Racing Limited)

Turville Heath Inc v Chartis Insurance UK Ltd

- Why is the distinction important?

Issues – Arbitration • Arbitration agreement

– Scope

– Governing law

– Procedure

– Arbitration Act 1996

• Seat of arbitration

• Arbitrators’ limited powers

• Role of the courts

• Grounds for appeal

Issues – Arbitration

• Challenges to arbitration

- Stretford v The FA

“…where parties have voluntarily or (as some of the cases put it) freely entered into an arbitration agreement they are to be treated as waiving their rights under article 6…the arbitration agreement must be voluntary and not compulsory. By compulsory in this context is meant required by law .”

- Cañas v ATP Tour (Swiss Federal Tribunal)

“…it is usual to only accept waivers of appeal on a limited basis…most of the time, athletes do not have a great deal of power over their federation and have to adhere to its wishes whether they like it or not. Therefore, an athlete who wishes to participate in a competition organised under the auspices of a sports federation whose regulations include an arbitration clause has no option but to accept such a clause…This is especially true where professional athletes are concerned. They are confronted with the dilemma of either agreeing to arbitration or practising their sport as an amateur. ”

- Claudia Pechstein

Issues – Arbitration

• Validity of mediation clause

• Consequences of refusing to mediate

Pre-action considerations

• Pre-action conduct

– Rules / protocols governing pre-action conduct

Rule 1.4, Civil Procedural Rules: “encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate and facilitating the use of such procedure”)

– Failure to comply

Article 18(1), FIFA Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber: “Should a party generate unnecessary costs on account of its conduct, costs may be imposed upon it, irrespective of the outcome of the proceedings.”

• Funding

• Limitation

Settlement

• Settlement agreement

• Release clause

• Conditionality

• Intention of the parties

• Subject to contract

Summary

• Rules governing dispute resolution in sport must observe the principles of natural justice and procedural fairness.

• The dispute resolution processes established / agreed should be sport-specific, efficient, flexible and affordable

• Consider all dispute resolution options (e.g. multi-step dispute resolution clauses)

• Careful drafting of dispute resolution clauses / rules and settlement agreements

• Be mindful of the role that the courts can / will play in the process

Questions?

Stuart Baird

Senior Associate

Brabners LLP

55 King Street

Manchester

M2 4LQ

Tel: 0161 836 8800

Fax: 0161 836 8801

E-mail: [email protected]

mailto:[email protected]

Case Study

• Club A and Club B are playing in the Semi Finals of the Quidditch National Championship.

• This is a crucial game to decide whether Club A or Club B will progress to the National U16 club finals.

•Accusations have been made that the umpire, Beyoncé, has made a number of dubious decisions in favour of Club A.

• It is alleged that Beyoncé has shown bias towards Club A and may even have accepted a bribe to let Club A win the match.

Case Study

Facebook

•Beyoncé is the aunty of Club A’s star player, Kylie.

• Elizabeth, Club B’s Captain, has alleged that Beyoncé was offered a free holiday by Kylie’s mother, Mrs Ga Ga, (Beyoncé’s sister-in-law) in exchange for ensuring Club A went through to the finals.

Case Study

Extract from Hare’s letter to AEAFA

•Mary, Club B’s player, was ordered off the court by Beyoncé for foul and abusive language to the umpire and Club A’s players.

• Upon leaving the court Mary spat at Elizabeth of Club A and punched Beyoncé.

Case Study

Extract from Hare’s letter to AEAFACase Study

•Mary’s friends, George, Ringo and John, shouted racial abuse at Beyoncé following Mary’s dismissal.

• George, Ringo and John refuse to leave the courtside at Beyoncé’s request so she reluctantly allows the match to continue.


•After the match, a fight breaks out in the changing rooms between Club B’s Mary and Victoria and two of their younger team mates

• As a result of the fight, allegations come to light that Mary and Victoria have harassed and bullied younger members of their team over a number of months

Case Study


1. A complaint is sent by Elizabeth regarding Beyoncé’s alleged bias:

(a) if the complaint was received 10 days after the incident would this change your handling of the

matter?

(b) upon receipt of a complaint, what are your next steps?

You are the Disciplinary Officer:


2. Beyoncé files her Match Report and details the misconduct of Mary. She also includes details of the post-match fight between Mary, Victoria, Catherine and Anne. She also referred to the abuse she received from George, Ringo and John.

As the disciplinary officer, what do you do?


Extract from Hare’s letter to AEAFAYou are the Disciplinary Officer:

Do any of the above facts constitute a disciplinary matter under the Disciplinary Rules?

(a) If so, which elements of the disciplinary rules?

(b) If not, why? Should they be referred elsewhere?

You are a member of the Investigation Panel:

As part of your investigation what would you do in relation to complaints against:

(a) Beyoncé;(b) Mary(c) George, Ringo and John(d) Victoria; and(e) Catherine and Anne?


5. Beyoncé makes a formal complaint to the police about Mary’s violence and the racial abuse. What should you do about any disciplinary proceedings in the meantime?


Extract from Hare’s letter to AEAFAYou are the Disciplinary Officer:

6. Do you think that an interim suspension for any individual is appropriate? What factors would you take into consideration? If you decide on an interim suspension(s), for how long?

Extract from Hare’ You are a member of the Disciplinary Panel

s letter to AEAFA

7. The Panel is constituted to hear all proceedings and Mr Ga Ga, Kylie’s father has been appointed to the Panel to hear disciplinary proceedings against:

(a) Beyoncé;

(b) Mary;

(c) Victoria;

(d) Catherine; and

(e) Anne.

Do you think this causes a problem for any of the cases? If so, what steps should the Panel take?

8. As a Panel member what forms of evidence will you require from the parties prior to the hearing and how far in advance of the hearing?

9. Mary wants to be represented by a lawyer

– should this be permitted?


s letter to AEAFA


s letter to AEAFA

10. The Vice President of the Quidditch National Association is present on the day of the hearing and insists on observing it. He is also present during the Panel’s deliberating.

Does this create any problem?

11. Further, the Vice President suggests that the witnesses should all be in the room throughout as they have always done things that way, and in any case there is no other room available. Does this raise any issues?


s letter to AEAFA

12. Following the hearing, Mary wishes to appeal a lifetime ban from the sport. What should she do?

13. Upon what grounds do you consider

she may be able to appeal?

Carol Couse Stuart BairdPartner Senior AssociateBrabners LLP Brabners LLP55 King Street 55 King StreetManchester ManchesterM2 4LQ M2 4LQ

[email protected] [email protected] Tel: 0161 836 8815 Tel: 0161 836 8912Mob: 07814 016399 Tel: 07741 197912



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